In cases involving driving under the influence, the state often relies on test results to show that the defendant was intoxicated. However, the prosecutor may also point to the defendant’s behavior as evidence of intoxication. A Washington appeals court recently considered whether a prosecutor committed misconduct when she referenced negative statements the defendant made about the other driver and her passenger after the accident in a recent unpublished case.

The defendant appealed his convictions for two counts of vehicular assault. According to the appeals court’s opinion, the defendant had three or four drinks on the evening of the collision. His blood alcohol level after the accident was .12 grams per 100 milliliters. A witness had seen the defendant’s truck swerve across the yellow line several times. The witness saw the defendant drive into the opposite lane toward an oncoming car. The two vehicles collided head-on.

A Washington State Patrol collision technical specialist concluded that the defendant’s truck was in the oncoming lane when the vehicles collided.

The state charged the defendant with two counts of vehicular assault and filed aggravating factors, including one related to causing injuries that substantially exceeded the bodily harm needed to satisfy the underlying charge.

The defendant testified that the other vehicle had been in his lane right before the accident. He said he had moved into the opposite lane to avoid the vehicle and tried to swerve back into his lane when the other car moved back into its own lane. The witness, however, testified that she never saw the other vehicle in the defendant’s lane.

The state presented evidence during the guilt phase of the trial that the defendant screamed that it was the other driver’s fault. An officer testified the defendant had called the people in the other car “hood rats” and said they were after his money because he was middle class. In closing, the state asked the jury whether a sober person would say these things. The defendant did not object.

The jury found the defendant guilty on both counts of vehicular assault but found the aggravating factors did not apply.

The defendant appealed his conviction, arguing the prosecutor committed misconduct in her questions and statements to the jury during closing argument. He argued that she appealed to the jury’s emotions when she commented on the statements he made regarding the other driver and passenger.

A defendant claiming prosecutorial misconduct must show that a prosecutor’s conduct was improper and prejudicial in the context of the record and the circumstances of the trial. The court must consider the prosecutor’s conduct within the context of the whole trial and the context of the total argument, which includes the issues, the evidence, and the jury instructions.

The prosecutor is responsible for ensuring the jury’s verdict is based on reason and is not tainted by prejudice. It is therefore misconduct for the prosecutor to appeal to the prejudice or passion of the jury. However, a prosecutor is not prohibited from making an argument that could evoke an emotional response, if the argument is based on relevant evidence.

The appeals court found the defendant’s statements “would tend to prejudice the jury against him,” but they were directly related to the issue of his intoxication. The prosecutor discussed the statements in the context of asking if they were something a sober person would say. The appeals court found that this question was within the prosecutor’s right to argue inferences from the presented evidence and that she had not committed misconduct. The court further found that she had not unfairly characterized or embellished anything in the record.

The defendant also argued ineffective assistance of counsel because his attorney failed to object to the prosecutor’s closing argument and retain an expert.

Since the appeals court found there was no prosecutorial misconduct, it also rejected the defendant’s claim of ineffective assistance of counsel on this issue.

To support his claim of ineffective assistance of counsel based on his attorney’s failure to obtain an expert to investigate the accident, the defendant referenced a case in which the defendant claimed a mechanical malfunction occurred, causing him to lose control of his vehicle. The defendant in that case had included a declaration from an accident reconstructionist that there was evidence of a problem with the steering components that caused a loss of control.

Here, however, there was nothing in the record showing what an accident reconstruction investigation would have found. The appeals court found the record was insufficient for it to determine if the defense attorney’s conduct was deficient or caused actual prejudice.

The appeals court affirmed the defendant’s convictions.

This case illustrates the wide latitude a prosecutor has in drawing inferences of intoxication based on evidence of the defendant’s behavior. The Seattle DUI attorneys at Blair & Kim, PLLC, are experienced in cases involving driving under the influence. We know the arguments prosecutors make and can aggressively defend you against them. If you are facing criminal charges related to driving under the influence, call us at (206) 622-6562 or contact us through our website.